The Composer’s Guide to Doing Business: Copyright Part 5

My apologies for my absence last week – an unexpected health issue kept me from making use of my regularly-scheduled Composer’s Guide writing time last week (I set aside every Wednesday evening from 6:00 until 1:30am to write this, though I try not to take that long!), and the rest of my time was already spoken for until today. Such is my life!

So this week I want to finish off (at least for now) our copyright discussion with one of the most controversial topics surrounding intellectual property law: the cutely-named “copyleft” movement, and its impact on how copyright law is perceived.

First, though, a brief note and a few links on copyright infringement again. One of my earlier posts on the importance of registering your works, and it was noted in the comments that wholesale theft of concert music almost never happens. However rarely it happens, though, it still does.

Take as an example the Messe de requiem by Alfred Desenclos. The Messe was composed in 1963, and published by Durand et Fils in 1967. Then in 1999, almost 30 years after the death of Desenclos, it was presented as an original work by the young composer Tristan Foison. The story is sordid and sickening. And a wonderful cautionary tale. You can read about it here and here. So who doesn’t want to register their works now?

OK. Copyleft.

The copyleft movement started in the software world: software engineers wanted certain of their programs to be freely available while still limiting certain uses of them: particularly commercial use. In other words, they wanted people to be able to use and build upon their code, but didn’t want corporations to swoop in, modify the code slightly (derivative works, anyone?), and release the minorly-edited version commercially, thereby making potentially millions of dollars on a product that they neither created nor funded the creation of. The fruits of this movement are quite robust and active still in the tech community in the form of Open Source. WordPress, OpenOffice, VideoLAN, Wikipedia, Apache, Android, Mozilla: these are all companies and products centered around the Open Source Initiative, which has its roots in copyleft. Each of them may be used and disseminated freely, and users may modify or add to them so long as they don’t offer the modified version for sale, and in most cases maintain the notice of original authorship.

Most of what we make use of on the internet is thanks to the Open Source Initiative, the GNU License, etc. This blog is powered by WordPress. Some of the cooler bits of coding on this site are my own adaptations of various codes available on sites like Dynamic Drive. If you care to, view the source of this page and see the authorship notices embedded in the site’s header material. You can bet your sweet bippy that I’m thankful for open source software.

However!

This is all tech crap I’m talking about. It’s not music.

So where does music enter into the equation?

With the advent of sampling and sound libraries, there came a wider call for freely-available sounds and sampling materials. Just as with the proliferation of powerful image editing software, there grew a need for non-copyrighted stock images. Of course, when I say a “call” or a “need”, I mean: people wanted to use things that other people made, but not pay for it.

Enough people had gotten in trouble for using copyrighted images or sounds without permission that some of them started making their own and offering them for others to use without having to pay licensing fees. Many of these are available thanks to the proliferation of the Creative Commons license.

I get a lot of questions about Creative Commons and how it compares to copyright. (There’s nothing to actually compare, but we’ll get to that.) In fact, it was an email conversation I had with a fellow composer about Creative Commons that sparked me to write my first essay on copyright, which I’ve plundered liberally for this series.

This composer argued in favor of abandoning copyright in favor of licensing under Creative Commons and similar entities. (I say “entity” because Creative Commons is a non-profit corporation. FYI.) And it was this argument that made me finally realize how little composers and other artists understand about what Creative Commons actually is, and how it stands in relation to copyright.

A lot of composers and artists I talk to seem to think that Creative Commons and similar types of licenses are an alternative to copyright. That somehow CC’s ShareAlike and NoDerivs licenses replace the need for copyright protections. CC is, in fact, a type of extension of copyright that allows creators to forfeit various and sundry of their rights so that other people can have more stuff for free.

You can see that I’m not the hugest fan.

Now, I’m not completely opposed to CC licenses, but I think that composers should be careful about using these licenses with their works.

The most successful uses of CC licenses that I’ve seen used with creative works have been with photos, sound samples, and webcomics. All of these are small individual works that help to give a creator exposure and experience while also allowing them to generate revenues in other areas.

For example, photographers can make a handful of their photos available with a CC Attribution-NonCommercial license as teasers for the rest of their work – individuals and companies that want to use other of their images can pay a licensing fee, or hire them for individually-tailored shoots. Audio engineers offering sound samples can create a tiered service: the basic set of samples are made available gratis, and the “premiere” set can be purchased for a fee.

Webcomics make ingenious use of CC licenses. The individual comics themselves, because they’re posted to sites that are accessible by anyone, and because no image online is safe for long, are all licensed under CC. It’s merchandising that earns the artists their income. Jeffrey Roland’s TopatoCo is a prime example of this, as is Randall Munroe’s xkcd comic and store. Roland’s comics Wigu and Overcompensating, you’ll notice, like Munroe’s xkcd (all three of which I adore – I have a whole folder of webcomic feeds that I subscribe to in Google Reader. If you want me to dork out some time, ask me about it.) are available via CC licenses. And fans who want to have the comics collected in book form, or want T-Rex of Qwantz fame on a t-shirt , or want a print of Cornelius Snarlington, Business Deer, can shell out cash for the comic artist’s merch.

Concert music, in my opinion, differs greatly from these media. Enough so that I find CC licenses to be ill-advised for concert music composers. I’m always willing to listen to arguments to the contrary, but for the moment, I can’t see CC (say that ten times fast!) as being beneficial to our financial or artistic well-being.

Let me explain as best I can.

Our works are highly-individualized, labor-intensive, time-consuming things that have very specific types of secondary income: score sales and print/recording/broadcast/etc royalties. By appending a CC license to any of our works, we forfeit our claim to those sources of income. And unless we write many, many works with the same instrumentation, we aren’t likely to be able to use a limited number of CC-licensed works as gateway works to the rest of our catalog. Even then, a composer with a significant number of works for solo piano would be – in my opinion – ill-advised to offer one or two pieces under CC licenses hoping to attract interest in the rest of his catalog. A photographer offers a limited number of photos under CC because she knows that those few she offers for free won’t be appropriate for every project that others may need images for. An audio engineer can offer a limited number of quality samples because he knows that while some users will be content with the free product, more users will want the full complement of samples because of a) their quality, b) their range and scope, and c) again their quality.

The concert music composer who offers a CC-licensed piano piece is offering a stand-alone work that is presumably of considerably high quality. (Why offer a work that is not your best?) That work is likely to be played more often than those that require the performer to pay for the score and performance licenses. People will, of course, buy the others, but probably rather less often.

One argument I’ve heard in favor of CC licenses is that they allow others to make use of your music to create more art.

That’s nice and all, but they can still do that without you renouncing whole swaths of your rights.

Remember the last chapter from two weeks ago when I told my little story about the visual artist who used one of my scores in her work? (I completely failed to mention, by the way, that her name is Yu-Wen Wu, and he’s fabulous. You can see the body of work inspired by my score here.) Well, I gave her permission to use my score, and I didn’t ask her for a fee or anything. She’s a friend, and I was happy to have my piece repurposed for the sake of her art, so I just said, “Yes.”

You can do that, too!

I’ve also had my works remixed by pop artists, and arranged by fellow composers. All I asked of them was that I get credit as the original author. That may sound like a CC Attribution license, but the big difference is that I retain my rights to those works for all other uses.

It’s not that I’m stingy, it’s that I don’t feel the need to renounce significant portions of my rights altogether.

If you want people to remix your work, or make use of it in some new and unusual way, you don’t have to give up your rights.

A simple solution? Put something on your website saying that you welcome collaborations with other artists, and all they have to do is email you at youremailaddress@yourdomain.com. Done!

Problems with Perception
There are a few reasons, I think, why people tend to rebel against copyright, and lean toward the copyleft movement (which I recently heard referred to as “copywrong” – I don’t disagree with that assessment), and I think it has to do with public perception of how copyright can be…misused…? I hesitate to use the term, although I think that it is what I really mean to say.

Copyright duration tends to be a big issue for some people, and I can’t say that I completely disagree with them. I fully believe that a creator should have complete control over his/her works for the entirety of their lives, including the right to assign those rights to others (publishers, etc). I even think that the creator’s heirs should get some benefit from royalties, etc. So, I definitely advocate for a life-plus-___ duration.

I certainly don’t have an answer as to how long I think copyright should extend beyond the life of the creator. But it should for some reasonable period.

I’ve heard a lot of people lately saying that life plus 70 years is too long, and they’re not unreasonable in saying so.

And it’s the reason why life-plus-70 exists that has skewed much of the public’s perception of copyright. The Copyright Term Extension Act of 1998 was lobbied for extensively by the Walt Disney Company and the Gershwin Estate. Both had a lot on the line – the copyright terms for Mickey Mouse and Rhapsody in Blue were both nearing their end; and because the CTEA was passed, both of these continue to be significant sources of revenue for each organization, respectively. Thus, the perception of copyright as benefiting only corporations was born.

Because of this sore point, it’s easy to overlook how greatly copyright benefits individual creators. As I’ve said many times already, all opportunities we have for income generated from our works are because of copyright.

I feel really strongly about composers holding onto their rights. So I urge those of you considering using Creative Commons and similar licenses to think carefully before you do. It’s a bell that can’t be unrung – once you put a piece out there with a CC license on it, those copies can circulate and undermine any attempt you may make later on to generate income from the same work, should you reconsider your earlier decision to go the copyleft route.

Before I close the door on our copyright discussion, I would be remiss if I didn’t make note of termination rights. For those of you who have pieces that were published during or after the late 1970s, you have a unique opportunity coming up: you can reclaim rights that you’ve assigned to your publishers. This right comes available 35 years after first publication, and is available only for a window of 5 years. There are hoops that must be jumped through, and some really specific timing issues involved, but some of you may find it to your benefit (though don’t expect your publisher to be happy with you).

There’s a good blog post by an Intellectual Properties lawyer on the subject here, and the Copyright Office’s official language here.

That does it for now for copyright, so I’ll see you all back here next week for the next exciting episode chapter of The Composer’s Guide!

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Thanks!






Doing Business: Copyright

A composer colleague of mine asked me to say a few words on copyright, on which I think I have a few reasonably intelligent things to say.

Copyright, in my opinion, is a much-maligned, almost-always-misunderstood, wonderful necessity to creative endeavors. That said, it’s very easy to misunderstand the concepts behind copyright, and there’s much in modern society to make things even more confusing.

First, what is copyright? Copyright is a group of rights automatically granted to the creator of an intellectual property (for our purposes, a musical work). At its most basic, copyright is the right to create and distribute copies of the original work. (And let me just point out that it’s copyright, not copywrite – a work is not copywritten, it is copyrighted.) However, there are subsidiary rights that come with the “right to copy”, such as:

• the right to create derivative works
• the right to perform or display the work publicly
• the right to transmit or display the work by radio or video
• the right to sell or assign all or a portion of these rights to others

These are some awfully important rights, and they’re often overlooked.

What makes copyright so important is that it allows composers to control when and how their works are used, and in the process hopefully make a living from it. Let me offer a few examples.

Publishing
A composer can assign (all or a portion of) her rights to a particular work to a publisher in exchange for distribution and a royalty on sales. The publisher now owns the right to create and distribute copies of the work and generate a profit from those copies. The composer, in exchange for this assignation of rights, is entitled to a royalty on each sale. We’ll not go into the details of royalties, and my opinions on assigning rights to a publisher, in this essay – I could go on for ages, but that’s not what we’re here for. This is the most common way for a composer to leverage her copyright to earn money.

Slightly more complicated is the assignation of rights to a record label. Copyright for audio recordings (or phonorecords, as they’re outdatedly referred to in copyright law) is in some ways counterintuitive, and I’m still learning the ins and outs of some of the finer points. Suffice it to say that the copyright to the piece of music remains with the publisher or composer, but the copyright for the recorded performance belongs to the record label. The composer and publisher are entitled to royalties in this case, as well, although they’re much, much smaller.

The first recording of a work is the only recording that the original copyright holder has any substantial control over. If a piece has never been recorded and commercially released (archival recordings, meaning recordings that have never been released for sale on any level, don’t count as a commercial release, and don’t count toward/against this requirement), its composer or publisher may refuse permission to any performer or label that wants to record it, and the composer or publisher may negotiate mechanical licensing fees, royalty rates, and other fees associated with the use of the work for the recording. However, once that first commercial recording has been made, any other performer or record label may record it without permission, and are only required to offer a “compulsory mechanical license fee”, which is a whopping $0.091 for works under 5 minutes, and $0.0175 per minute for works over 5 minutes. It’s not a lot. At all.

You can see why leveraging control of copyright can be important here. Let’s imagine that I allow a pianist to record one of my works and make it commercially available on a disc. The performance isn’t very good, and the recording quality is sub-par at best. It sells maybe five copies a year. I negotiated a fair royalty rate with the pianist, but with such pitiful sales, it doesn’t matter since it’s not selling anyway, and the recording is bad enough that I don’t want it representing me, so I don’t actually want it to sell. Along comes Deutsche Gramophon (since we’re playing out a litle fantasy here), and they decide they want to put it on a compilation disc. Since the piece has already been commercially recorded and released, I can’t negotiate a decent royalty, so when the recording turns out fantastic and sells like hot cakes (ahh, fantasy), I’m paid literally pennies per copy. (This scenario could then be turned to my advantage, but that’s not a copyright issue; instead it’s a marketing one – another discussion for another day.)

I should point out here, albeit briefly, that there is a substantial difference between performance royalties, print royalties, and mechanical royalties. Performance royalties are paid by a Performing Rights Organization such as ASCAP, BMI, or SESAC, and are paid for live performances of your works. Print royalties are paid directly by your publisher (if you have one), and are for sales of scores and printed music only. Mechanical & digital royalties are paid through a mechanical licensing agency like the Harry Fox Agency (there are several others) or directly from the record label/recording artist if you aren’t registered through an agency, and are for CD and MP3 sales only. Some finer points: mechanical/digital royalties get paid only for sales because CDs and MP3s are assumed to be for private use only (listening in your home, your car, on your iPod). However, when a bar plays a track from a CD, or a piece is broadcast on the radio or on TV, it suddenly becomes a public performance, and is paid as a performance royalty through your PRO. “Live performance” isn’t limited to human beings on stage in front of other human beings; it is any public display (remember that in the bulleted list above?) or presentation of the work, and is consequently paid as a performance royalty.

Derivative Works
Because I’m the owner of the copyright, I’m able to make derivative works based on the original piece. I can take my piano piece and arrange it for orchestra or Pierrot ensemble or string quartet. I can also create an orchestral suite on themes from my latest opera. Since I created the original work, I have the right to do with it as I please.

However, when I assign those rights to a publisher, they have the right to create derivative works – or, more likely, hire an arranger to create derivative works. I’m now in the position of having to ask my publisher for permission to arrange a piece that I wrote in the first place.

Let’s move outside the scope of music for a moment, and think about novels to explain a bit further. If I were to write a short story or novel centered around a young wizard named Harry Potter, I’d be in a world of hurt because that character – that intellectual property – is owned by either J.K. Rowling or her publishers (it depends on the wording of her contract, which I’m obviously not privy to). Any fiction that anyone might write starring the Boy Who Lived would be considered a derivative work, which is the purview of copyright.

Similarly, any piece of music I may write that makes use of a theme or themes by Benjamin Britten would be considered a derivative work. If I were to orchestrate one of his piano pieces, I would be creating a derivative work, and consequently violating his publisher’s copyright.

Conversely, if I were to authorize the creation of a derivative work such as a choral arrangement of an art song, I would still be entitled to a royalty since I’m the creator of the original work. I can authorize arrangers to create multiple versions of a handful of my pieces with varying instrumentations, and offer them for sale under my own publishing company. I’d owe the arranger a portion of the royalty (depending on my contract with him), but I would in turn have a larger catalog to leverage. Or, you know, I could do it all myself and not owe anyone else royalties.

Performance and Transmission
One of the cornerstones of a composer’s income, aside from commissioning fees, is performance and broadcast royalties. Every time a piece of mine is performed publicly, I’m entitled to some sort of royalty. If this provision weren’t a part of copyright law, my works could be performed anywhere and by anyone without benefiting me in the slightest.

Now, some composers may not have a problem with this because they’re just happy to have their works out there. However, the problem isn’t just that I’m not making money off of a particular performance: it’s that the performers/presenters/performance venues are profiting from my works while I’m not. Allowing non-creators to profit from the creator’s work creates a huge inequity. In fact, it creates a huge disincentive for the creators to stop creating. If everyone but me makes money off of my work, why should I continue to do it?

And there, folks, is the crux of copyright in the modern age. By not enforcing copyright, creators are put at a huge disadvantage. I, for one, would appreciate being able to make a living at the career that I’ve put over half of my life into. Just because I love writing music doesn’t mean I should do it without compensation. This starts to segue into another conversation about commonly held views and misconceptions about creators. And it’s a conversation that needs to be had – loudly and in many venues.

Where do the waters get muddied?
A few things start to muddy the waters here, and it can be difficult to discuss them rationally, or to separate the exact problem from what seems to be the problem.

One problem that people have with copyright is that it seems to benefit large corporations more than it does the individual. Now, in many cases this is true. But not true enough to abolish copyright, as some would like to do. One of the difficulties here is that corporations have the resources to lobby congress to revise copyright law to benefit them more and more. It’s happened more than once. The Disney corporation and the Gershwin estate have had an active hand in pressuring members of congress to extend copyright further and further so that they can maintain a hold on their previously-copyrighted properties. These extensions do next to nothing for individuals. I, for one, will never benefit from the extensions, because I’ll be at least 70 years dead by the time my copyrights expire. My estate might benefit from them, but not to the degree that Disney will benefit from owning Mickey Mouse or the Gershwin estate from owning Rhapsody in Blue. This seems to be the public face of copyright to most. I’ve seen lots of comments threads in lots of blog posts and news outlets decrying copyright as a purely corporate tactic to make even more money at the consumer’s expense. Because they don’t understand the true nature of copyright, many people can’t see how it benefits the individual and encourages creation.

Even creators themselves often have issues with copyright because they don’t really understand it. Many young composers and artists see copyright as an impediment to their being able to get their works seen and heard. It is only if you make it. One of the ways that people are trying to loosen copyright is through things like the Creative Commons license. I know more than one composer who mistakenly thinks that Creative Commons is a substitute for copyright. Clearly they don’t understand what they’re talking about. Even Creative Commons makes a big point of saying that it’s not a substitute for copyright. It’s an appendage to copyright.

Creative Commons is a licensing tool. Notice that it’s called a Creative Commons license. Take a look at the different types of CC licenses and then take a look at the rights granted by copyright law. Look familiar? If not, look again. CC allows a creator to grant particular rights to non-creators – various distribution rights (with attribution, without attribution, for/not for commercial use) and rights to create derivative works.

I, for one, would never use a CC license with regards to my work. I prefer to take things on a case-by-case basis, and grant permissions where I deem it appropriate. But that’s my own choice, and isn’t right for everyone. I’ve had pop remixes done of some of my art songs, I’ve had my scores used as the basis for an entire body of work by a visual artist, and I’ve had one of my choral works recorded professionally. In all three cases, I’ve assigned rights as needed, and had absolutely no problem with legal issues. People who want to use my works in some way come to me, ask my permission, and I grant it. It’s that easy. I don’t need a one-size-fits-all license from a faceless entity, thanks.

Obviously this isn’t all there is to know about copyright. There’s lots I don’t know, and that I’m still learning. But I do know that copyright is the thing that will allow me to generate income from my works and actually have a career as a composer.

Disclaimer: I’m obviously not a lawyer, and my writings here shouldn’t be construed as legal advice.